Lawmakers Target Bad Doctors

May 1–One Illinois doctor left a woman waiting for an emergency Caesarean section while he spent time with his girlfriend. Another botched a gynecological surgery, then urged his bleeding patient not to go to the hospital. A third ignored the fetal monitor during a difficult delivery that resulted in a brain-damaged infant.

Although all three were referred to state regulators for investigation, none was ever disciplined–even though all resulted in out-of-court settlements in malpractice lawsuits.

Advocates for injured patients say state law sets the bar so high that some of the worst cases go unpunished. Now, in an attempt to contain the rising cost of medical malpractice insurance in Illinois, lawmakers are considering how to toughen up the regulatory system to weed out doctors who might be most prone to the kind of medical negligence that ends up in court.

“One way to lower the payments would be to reduce the times you have negligence,” said Sen. John Cullerton (D-Chicago), chairman of the Senate Judiciary Committee and a key player in the talks in the Statehouse. “If it turns out there are physicians not being properly disciplined and being allowed to continue to practice medicine, getting rid of them is a way to lower the rates. Bad doctors raise the rates.”

Statistics suggest that repeat offenders may be a significant part of the problem of rising insurance costs. Just 5 percent of the doctors who have made malpractice payments over the last 15 years are responsible for almost one-third of such costs, according to statistics compiled by the National Practitioner Data Bank, run by an agency of the U.S. Department of Health & Human Services.

Doctors and their advocates say that’s evidence of a few disproportionately large jury awards. But others say it suggests a handful of doctors are causing more than their share of the problem, and regulators aren’t doing enough to weed them out.

It is hard for regulators to sanction or revoke the licenses of doctors for several reasons, including a five-year window for considering multiple complaints against the same doctor and a standard for discipline so high that it exceeds the one for lawsuits. Doctors make up a majority of the board that judges doctors. Some critics think there is a shortage of state investigators. And others say the public doesn’t have meaningful access to disciplinary records.

The regulators themselves think the statute of limitations is one of the biggest problems. The Illinois Medical Disciplinary Board generally can consider an allegation of negligence for only five years after it occurs.

That makes it hard to punish a doctor with a track record of complaints spanning more than five years, or what lawyers call a “pattern of practice” that is poor. The Illinois Department of Financial and Professional Regulation, which conducts the investigations, gets an additional year to examine a case after it results in an out-of-court settlement or a jury verdict.

“To establish a pattern of practice you would need to look at a number of cases,” said Daniel E. Bluthardt, acting director of the state agency’s division of professional regulation. “Five years isn’t always enough to show that pattern. We can’t establish a pattern if the incidents happened more than five or six years apart.”

The department is pushing for a change in the law that would give it 10 years to investigate an incident.

But Cullerton and other critics of the system say the real problems are more fundamental.

To take serious action for anything having to do with patient care, the board has to find a doctor guilty of gross negligence. In a lawsuit, plaintiffs must prove only simple negligence.

“Gross negligence is a much higher standard than what you have to prove in a trial,” said Cullerton. “There are very few doctors who are removed because it’s so hard to prove it.”

Sanctions can range from a cease-and-desist order or fine to probation, suspension or license revocation. Complaints against a doctor can originate by reports from the public or from insurers, hospitals and doctors regarding verdicts, settlements and professional disciplinary actions.

The Illinois State Medical Society says enforcement is the problem and has urged lawmakers to increase the number of investigators and to make sure the regulatory agency has adequate funding.

“We have one investigator for every 5,000 physicians,” said Dr. Kenneth Printen, medical society president. “We have some legislation pending that would ask for an increase in the number of those investigators, so they can better do their job … If there are truly bad doctors out there, the physicians don’t want them practicing.”

Patients who do their homework before choosing a physician don’t get a lot of help from the state. Regulators are prohibited from discussing why or how they ruled in particular instances in which they don’t hand down a sanction. A national database stores more detailed information about individual doctors, but it’s not available to the general public.

Doctors argue that the volume of complaints reported to the disciplinary board is not necessarily a fair measure of malpractice because it includes out-of-court settlements, which are not necessarily admissions of guilt. Often they are the result of cost-risk assessments by insurers who figure they will save money by avoiding the unpredictability of a jury. But others note that the worst cases are the most likely to settle out of court, because defendants want to avoid a big jury award.

State regulators say they are being as aggressive as they can about doing their job. During the last three years, for example, the state has improved the rate at which it takes serious action against doctors.

In 2000, Illinois regulators took a total of 110 actions against doctors. Only 29 lost their licenses or a licensed privilege.

In 2004, the board took action against 240 doctors. Some 125 lost their licenses or privileges.

Nationwide, Illinois’ disciplinary rate falls in the middle of the states. A recent study by the watchdog Public Citizen shows that the state ranks 25th among boards around the country, with the toughest punishing 10 of every 1,000 practicing doctors and the most lenient cracking down on only one. Illinois takes action against three of every 1,000 doctors.

Agency officials say they have improved because they have made a concerted effort to act more quickly on investigations. That has been possible in part because they replaced the part-time medical practice coordinator, the physician who guides preliminary reviews of cases, with a full-time coordinator.

But advocates for victims of malpractice say that many egregious cases still fall through the cracks.

One plaintiff’s attorney said he has been contacted many times over the years for information about cases in which doctors were found to be negligent or settled out of court.

“Typically what they ask is if my clients will forward their medical records to the department for review,” attorney Kevin Burke said. “That’s usually the end of it. No one gets disciplined.”

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